September 9, 2013

Sounding the Alarm to Save the Civil Jury

civil jury, Lewis Powell, pleading standards, Sen. Sheldon Whitehouse


by Senator Sheldon Whitehouse (D-R.I.). Sen. Whitehouse is a member of the Health, Education, Labor, and Pensions (HELP) Committee, as well as the Budget Committee, Environment and Public Works Committee, Judiciary Committee and the Special Committee on Aging.

James Madison famously observed in Federalist 39 that our American experiment depends on “the capacity of mankind for self-government.”  History has vindicated Madison’s faith in the American people, but we must not grow complacent.  Recent Supreme Court decisions, for example, have undermined Americans’ ability to participate in our system of self-government by opening the floodgates to corporate cash in our elections and eliminating the provision of the Voting Rights Act that has protected millions of Americans from discriminatory voting practices.  Another institution within our system of self-government – the civil jury – is also under attack and is disappearing, with little fanfare.  It is time to sound the alarm.

As I recently explained in the National Law Journal, the civil jury came to the United States with the earliest colonists.  It provided a means of self-government for Americans who chafed under British rule, and its preservation was vital to the founding generation.  Consequently, the Seventh Amendment  protected access to the civil jury, which serves, in the words of Alexis De Tocqueville, as a “political institution” and “one form of the sovereignty of the people.”

Unlike other institutions of government which can be dominated by the rich and the well-connected, the civil jury puts all citizens equal before the law.  As Sir William Blackstone observed, the jury “preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.”  The Founders wished to assure that when the executive is corrupt, when powerful interests have the legislature tied in knots, and when the press has turned against you, the hard square corners of the jury box still stand strong.

The civil jury’s independence makes it a natural target for powerful interests.  The U.S. Chamber of Commerce, for example, has systematically tried to undermine the civil jury since a 1971 memorandum by future Supreme Court Justice Lewis Powell noted that the “judiciary may be the most important instrument for social, economic, and political change.”  The success of this campaign can be measured by the number of Americans who, after much corporate propaganda, now associate the word “runaway” with the civil jury.  It also can be gauged by the steady flow of major corporate victories before the Supreme Court.  By heightening pleading standards, limiting juries’ discretion to set damages, diverting more cases to corporate-funded arbitration, and restricting access to class actions, the Supreme Court has seemingly deliberately reduced the availability and effectiveness of the civil jury.  By removing access to meaningful redress, these decisions hurt injured Americans.  By limiting the civil jury’s role as a political institution before which all Americans can be held to account, these decisions damage the very fabric of our government.

The civil jury is more than just a way to resolve disputes.  It fosters civic engagement, educates citizens about the workings of their government, strengthens bonds among people from all walks of life, and provides a final check when other institutions of government have failed.  We must not allow it to be destroyed under corporate assault.  Instead, we ought to ensure that judicial nominees have a proper understanding of the political importance of the civil jury, and we must fight for legislation, such as the Arbitration Fairness Act, that will undo some of the damage inflicted by the Supreme Court.  Like the fight to protect access to the ballot box, the fight to protect the civil jury will determine our continuing commitment to American self-government.  It is a fight we must win.